미국의 페어펀드(Fair Fund) 분배와 우리나라에의 시사점

Abstract

The U.S. Securities and Exchange Commission is compensating investors with the Fair Fund, which was created through disgorgement and civil penalties. While the U.S. has been an active user of Fair Funds as a means of compensating public investors, there are many critics of the program. Therefore, this paper examines the challenges of operating Fair Funds in the U.S. and considers the implications for introducing Fair Funds in South Korea. First, critics of Fair Funds argue that the overwhelming task of distributing Fair Funds hinders the enforcement function of financial regulators. However, it is difficult to say that Fair Funds weaken the enforcement function of financial regulators in South Korea as well as in the U.S. because they increase the legitimacy of civil penalties, resulting in increased enforcement. Second, critics argue that the distribution of Fair Funds is nothing more than a wealth cycle. However, this criticism is not a problem in South Korea as well as the U.S. The circularity criticism is not appropriate in cases where (1) the sanctioned company issues new shares or sells treasury stock after the failure disclosure, and (2) the sanction targets the direct offender, not the company. Third, a redundancy criticism is raised about the parallelism between the SECʼs Fair Fund distribution and securities class actions. In the case of parallel Fair Fund and securities class action lawsuits, the SEC refers to and coordinates with the parallel securities class action lawsuit in the process of establishing and distributing the Fair Fund. In South Korea, the redundancy criticism will not be a major problem. Since the securities class action lawsuit system is not active in South Korea, it is unlikely that the introduction of the Fair Fund system will result in unnecessary administrative duplication due to parallel securities class action lawsuits. Fourth, critics argue that Fair Fund distribution conflicts with the provisions of the Bankruptcy Act. However, a Fair Fund distribution to a bankrupt company would result in prioritizing shareholders over unsecured creditors under bankruptcy law. Like the U.S., Korean financial regulators should consider the circumstances of individual cases and resolve the conflict by refraining from establishing a Fair Fund for bankrupt companies or distributing it to individual investors. When introducing the Fair Fund system in South Korea, it is necessary to fully review not only the relevant laws and regulations but also the problems encountered in the process of operating the system in the U.S. and introduce it according to the Korean situation.